X (A Child), Re (Rev 1)

This matter arises in exceedingly unhappy but, I should like to think, most unusual circumstances.

I am concerned with a little child, who I will refer to as X, who was born in 2012. Not long after the birth, the local authority issued care proceedings in relation to X. In due course the care proceedings, together with proceedings for a placement order which the local authority had also issued, came on for a finding of fact hearing before a Circuit Judge in early 2013. The local authority’s Schedule of Findings Sought identified various injuries which X was said to have suffered, including a number of metaphyseal fractures. The judge had written reports from three experts, all of whom gave oral evidence, as did the birth parents, as I shall refer to them. The judge found the local authority’s case proved. There was no appeal from the judgment.

Later in 2013, the same judge conducted a ‘welfare’ hearing, following which the judge made care and placement orders in relation to X. There was no appeal from those orders.

Subsequently, in 2014, X was placed with prospective adoptive parents. Later that year they applied to adopt X. In response, the birth parents applied for permission to oppose the adoption application. Their application was heard by the same judge in 2015. By then a criminal investigation was on foot. At the subsequent trial in the Crown Court, the expert evidence had expanded both in volume and, very significantly, in its ambit, but at the date of the hearing before the judge in the family court this new evidence was not to hand. The judge refused the birth parents leave to oppose the adoption. Again, there was no appeal from his order. Later the same day, the judge made an adoption order in respect of X in favour of the adoptive parents as I shall refer to them.

The effect of that order was, as a matter of law, to terminate the birth parents’ rights and to make the adoptive parents X’s parents for all purposes: see sections 46 and 67 of the Adoption and Children Act 2002. But an adoption order does much more than that. As I said in In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam), [2015] Fam 186, para 54:

“an adoption order … has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in In re J (Adoption: Non-Patrial) [1998] 1 FLR 225, 229, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible.”

The trial of the birth parents in the Crown Court took place later in 2015. After the close of the expert evidence, the Crown abandoned the prosecution. The birth parents were, on the judge’s direction, acquitted, on the basis that there was no case to answer.

Following the outcome of their trial in the Crown Court, the birth parents applied to the Court of Appeal for permission to appeal out of time against the judge’s original decision at the finding of fact hearing in 2013, essentially on the ground that there was fresh evidence now available to them which satisfied the test in Ladd v Marshall [1954] 1 WLR 1489. They sought orders setting aside the judge’s findings and ordering a new trial. It should be noted that there was no application for permission to appeal either against the subsequent care and placements orders or against the adoption order. On the other hand, both in the grounds of appeal as settled by counsel and in their accompanying skeleton argument, it was made clear that (I quote the grounds of appeal) “If the parents succeed in overturning the findings … they will seek revocation of the adoption order.”

In accordance with directions given by McFarlane LJ, the application for permission to appeal came on for hearing before Black and McFarlane LJJ in March 2016. The birth parents were represented by Ms Martha Cover and Ms Katy Rensten, the local authority by Ms Sarah Morgan QC, and X by Mr Christopher Archer. None of them had appeared below. Given that the only challenge was to the judge’s original fact-finding decision, the adoptive parents were neither parties to the appeal nor represented in the Court of Appeal. Indeed, McFarlane LJ had directed that no steps were to be taken to inform them of the pending application without the leave of the Court of Appeal.

The Court of Appeal did not, as I understand it, give any reasoned judgment. It made an order in the following terms:

“UPON the parties to this permission application currently agreeing that the facts found by [the judge] should be re-considered by the court in light of the expert evidence called at the appellants’ criminal trial at the … Crown Court …;

AND UPON all parties agreeing and this Court endorsing the following steps:

(i)

the embargo on the child’s adoptive parents being informed of this application should be lifted;

(ii)

there is permission to the local authority to disclose the appeal bundle to the adoptive parents;

(iii)

the adoptive parents must be informed by the local authority of this application for permission to appeal and of the proposed re-consideration of the facts found by [the judge];

(iv)

as there is no ongoing legal process within which such a re-consideration could take place, the most appropriate legal mechanism may be to invoke the inherent jurisdiction;

(v)

the local authority will by not later than the 4^th April 2016 inform the parties and this Court whether or not it will apply under the inherent jurisdiction to bring proceedings in respect of the child in the High Court;

(vi)

pending the local authority’s decision the applicants will not take steps to issue proceedings under the inherent jurisdiction;

IT IS ORDERED:

1

The application for permission to appeal is adjourned to the 5^th May 2016 for further directions with a time estimate of 30 minutes, before a single Lord Justice of Appeal, unless before that date the application is withdrawn with the consent of all parties;

2

Any application to invoke the inherent jurisdiction shall be

(i)

served by the local authority on the adoptive parents of the child;

(ii)

listed in the first instance before the President of the Family Division by not later than the 28^th April 2016, subject to confirmation with the clerk to the President.”

On 22 April 2016, in accordance with the Court of Appeal’s order, the local authority issued an application under the inherent jurisdiction seeking “a re-hearing of the fact finding from the care proceedings.” The respondents to that application were the adoptive parents and the birth parents.

The matter came before me for directions on 28 April 2016. The local authority was represented by Ms Morgan, the birth parents by Ms Cover and Ms Rensten, the adoptive parents by Ms Deidre Fottrell QC, and X’s guardian by Mr Archer. Ms Fottrell drew attention to the fact that her clients had known nothing of the proceedings in the Court of Appeal and had had little time in which to prepare themselves for the hearing before me. After hearing argument, I decided that justice to the adoptive parents (and, indeed, to X) required me to grant Ms Fottrell the adjournment she sought. I accordingly adjourned the directions hearing part heard to 11 May 2016. I understand that because of this the Court of Appeal vacated the hearing listed for 6 May 2016 and re-listed it for early June 2016.

At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.

Pausing to take stock at this point, it will be appreciated that in some of its aspects this case is uncomfortably reminiscent of the Webster litigation: see Re Brandon Webster (A Minor) [2007] EWHC 549 (Fam), Norfolk County Council v The Parents and BC [2007] EWHC 1566 (Fam) and Webster v Norfolk County Council and the Children (By Their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, sub voc Re W (Children) [2009] 2 All ER 1156. In other aspects this case is uncomfortably reminiscent of In re C (A Child) (Adoption: Placement Order), Practice Note [2013] EWCA Civ 431, [2013] 1 WLR 3720, [2013] 2 FLR 1393. I shall return to the significance of this in due course.

I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:

“44

The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: In re W (Children), para 149. In that case, the adoption orders “were made in good faith on the evidence then available” (para 177) and therefore stood, even though the natural parents had suffered a “serious injustice”: para 148. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application”. Butler-Sloss LJ held (p 228) that: “there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45

Whether the natural father would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46

In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.”

Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.

The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.

For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that X should know the truth about the birth parents and about what did or did not happen.

I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about X’s past and about the birth parents. This has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, Lord Hodson, in the context of disputed paternity, said that:

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

To the same effect, in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145, para 29, Thorpe LJ identified one of the principles to be drawn from the cases as being:

“that the interests of justice are best served by the ascertainment of the truth.”

But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, and Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.

The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2394 (Fam), [2014] 1 FLR 523, paras 29-30:

“29

… We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [[2007] EWHC 136 (Fam), [2007] 2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]):

‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

In In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95, paras 12, 31, I set out and agreed with the formulation of the ‘three-stage’ approach identified by Charles J in Birmingham City Council [2005] EWHC 2885 (Fam). At the first stage (Re Z, paras 13, 33) the court is concerned to know whether there is any new evidence casting doubt upon the accuracy of the original findings. There must be some real reason to believe that the earlier findings require revisiting; mere speculation and hope is not enough, there must be solid grounds for challenge. Ms Cover and Mr Archer assert, and Ms Morgan and Ms Fottrell accept, that the test is met. I agree. Given that the test is met, justice, and, I stress, justice from every point of view, demands, in my judgment, that there be a re-hearing.

In relation to the second stage, what I said in Re Z was this (para 34):

“So far as concerns the second stage, the ambit of the review or rehearing, I doubt that one can sensibly be prescriptive. Much will turn on the forensic context and the circumstances of the particular case.”

In the present case it is common ground, and I agree, that it is appropriate to proceed to a full re-hearing of the original allegations made in the care proceedings. Nothing short of a full re-hearing will suffice.

The re-hearing is fixed to commence in October 2016. In the meantime there will need to be a further directions hearing. Amongst the matters to be considered on that occasion are two which I should mention. First, there may be matters to be decided in relation to the Re Z third stage. Secondly, there may be questions in relation to the reporting (including the contemporaneous reporting) of the re-hearing in October 2016: see, for example, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, paras 110-111, 119, and In re W (Children) (Care Proceedings: Publicity) [2016] EWCA Civ 113, [2016] 4 WLR 39.